Lawrence v. Seay

Citation60 So. 937,179 Ala. 386
PartiesLAWRENCE ET AL. v. SEAY.
Decision Date21 December 1912
CourtSupreme Court of Alabama

Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.

Action by Maud Seay, as administratrix, against Eunice Lawrence and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Counts 1, 2, 3, 5, 8, 9, and A sufficiently appear in the opinion. The following are the other counts referred to:

"(4) The plaintiff, suing as administratrix of the estate of Tom Seay, deceased, claims of defendant, Mrs. Eunice Lawrence Neal Lawrence, Willett Lawrence, J. S. Sisson, Will Jewell Abe Loftis, and Will Kidd, the sum of $25,000 as damages for that on or about the 27th day of January, 1908, the defendants, without any legal authority, went to the home of plaintiff's intestate to arrest one Hackleman, and in attempting to arrest said Hackleman, the defendants, or some of them, unlawfully shot and killed plaintiff's intestate."

(6) Same as 4 down to and including January, 1908, where it occurs therein, and adds: "The defendants unlawfully attempted to arrest one Hackleman, who was at the home of plaintiff's intestate, and, by unlawfully shooting at said Hackleman, thereby killed plaintiff's intestate."

(7) Same as 4 down to and including January, 1908, and adds: "The defendants went to the house of plaintiff's intestate, and, in unlawfully attempting to shoot Hackleman, shot and killed plaintiff's intestate, unlawfully, and without any cause therefor."

(10) Same as 4 down to and including January, 1908, and adds: "The defendants unlawfully conspired to arrest or kill one Hackleman, who was at the time at the home of plaintiff's intestate, upon a warrant void in the state of Alabama, or for the unlawful purpose of removing Hackleman to the state of Mississippi. In carrying out this conspiracy, and in attempting to arrest said Hackleman at the home of plaintiff's intestate, the defendants unlawfully attempted to arrest said Hackleman, and, by shooting at Hackleman, shot and killed plaintiff's intestate."

(11) Same as 10, with the additional allegation that defendant, regardless of the consequences, willfully, wantonly, and intentionally shot and killed plaintiff's intestate for said Hackleman.

John C. Milner, and John V. Smith and J. M. Chilton, both of Montgomery, for appellants.

Walter Nesmith, of Vernon, and John S. Stone, of Birmingham, for appellee.

MAYFIELD J.

This action rests solely upon the homicide statute, now section 2486 of the Code. The deceased in this case was shot to death in his own house, by one or more of the defendants, while attempting to arrest one Hackleman, or, as is claimed by some of the defendants, by said Hackleman, while resisting arrest. The action is brought by the wife of the deceased, suing as administratrix, and is against Mrs. Eunice Lawrence and six men who formed the posse comitatus to arrest the said Hackleman. Mrs. Lawrence preceded the other defendants, in her arrival at the house of the deceased, by several hours; and she is evidently sued on the theory of a conspiracy.

The complaint contained 12 counts. Omitting the formal parts, the only "wrongful acts, omissions, or negligences" alleged as giving the cause of action are stated as follows in some of the counts: "(1) * * * The killing of plaintiff's intestate on or about the 27th day of January, 1908. (2) * * * Plaintiff alleges that the proximate cause of the death of her intestate was the unlawful attempt on the part of the defendants to arrest said Claud F. Hackleman; and, in attempting to arrest said Hackleman, plaintiff's intestate was shot and killed.

Hence this suit. (3) * * * In attempting to arrest said Claud F. Hackleman, plaintiff's intestate was unlawfully killed by said defendants. (5) * * * Plaintiff avers that the proximate cause of the death of her intestate was caused by the unlawful act of the defendants in attempting to arrest said Claud F. Hackleman. (8) * * * The defendants went to the home of the plaintiff's intestate, and unlawfully attempted to arrest one Claud F. Hackleman; in doing so, the defendants killed, or proximately contributed to the killing of, plaintiff's intestate. (9) * * * Plaintiff's intestate was killed by the defendants, or one of them; and the unlawful attempt to arrest said Claud F. Hackleman was proximate cause of the killing of plaintiff's intestate." The tenth and eleventh counts attempt to charge a conspiracy, and will be treated separately. Count A was as follows: "(A) * * * Plaintiff avers that the death of her said intestate was caused by reason, and as a proximate consequence, of said unlawful and wrongful attempt to arrest said Hackleman as aforesaid."

The defendants demurred to each of these counts separately, and assigned many special grounds thereto, covering several pages of the transcript. The trial court sustained the demurrers to the first and second counts, but overruled them as to all the other counts; and these last rulings are severally assigned as error by the appellants. Many of these counts were subject to one or more grounds of the demurrer interposed thereto. They did not even allege that the defendants, or either of them, caused the wrongful death. Other counts were a little better than the first and second; but many of them were not sufficiently specific to inform the court of the nature or character of any particular "wrongful act, omission, or negligence" which resulted in the wrongful death. The allegations were entirely too general, uncertain, and equivocal to resist appropriate demurrer. We will not say that they did not state any cause of action, or that they would not support verdict and judgment, if not objected to; but the defendants are surely entitled to be informed with more certainty of the particular "wrongful act, omission, or negligence," for which alone the statute makes them liable, than they are informed in any of these counts. It is true that they are informed that they are charged with the wrongful death of plaintiff's intestate; but whether the wrongful death was the result of negligence merely, or of a wanton or willful act, is left wholly to conjecture. Such facts, as are alleged, leave it wholly open to inference that it was either the one or the other. This is not sufficient. Without this information, neither the court nor the defendants can know what pleas are available as a defense, further than the general issue. If the act was the result of negligence merely, contributory negligence would be a defense; if of wanton negligence or willful injury, then contributory negligence would not be a defense, but one of justification under process, or of self-defense, would be availing.

It will be noticed that neither of the counts uses the words "wrongful act," "omission," or "negligence," which are used in the statute, but the word "unlawfully" is used in lieu thereof. We do not say that one or the other of these terms used in the statute is necessary; but the allegation that the act complained of was "unlawful" would be equally applicable,...

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2 cases
  • Breed v. Atlanta, B. & C.R. Co.
    • United States
    • Alabama Supreme Court
    • June 5, 1941
    ...homicide statute as found in Suell v. Derricott, 161 Ala. 259, 49 So. 895, 897, 23 L.R.A.,N.S., 996, 18 Ann.Cas. 636 and Lawrence v. Seay, 179 Ala. 386, 60 So. 937. In these cases it was expressly stated: "that the right of action is only given under this statute to the personal representat......
  • Kuykendall v. Edmondson
    • United States
    • Alabama Supreme Court
    • January 27, 1921
    ... ... have been sustained. Section 2486 of the Code of 1907; ... Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann ... Cas. 1913B, 225; Lawrence v. Seay, 179 Ala. 386, 60 ... The ... court did not allow the defendant, Kuykendall, to testify as ... to the acts of himself and ... ...

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